In person, with interpreter assistance For the v Respondent — 2019

This was a preliminary hearing dealing with strike out and deposit order applications, not a final merits hearing. The claimant, a warehouse operative who had resigned with immediate effect on 16 August 2019, brought complaints including race discrimination, working time matters, and constructive dismissal. The tribunal did not hear sworn evidence and treated the claimant's covert recording transcripts as part of the material placed before it for the purposes of the preliminary applications.

The tribunal recorded that the claimant's line manager, Mr A, had supported the claimant's application for promotion to supervisor but that senior management had not approved it. The tribunal found that Mr A had arranged for the claimant to be paid additional sums described as overtime so that his effective hourly pay increased from £8.21 to £9.24, giving an unauthorised pay rise of about £50 per week. The tribunal considered this material relevant to the prospects of the claimant proving race discrimination by Mr A.

The complaint about repeatedly being forced to work in excess of 48 hours per week was found to be in time. The tribunal said the material pointed to a system failure affecting others and that the claimant had said nothing showing a causal link with race. It regarded the claim as unlikely to succeed on the merits but was not prepared to strike it out as having no reasonable prospect of success.

The complaints about no break time on three specific shifts on 7 August 2018, 25 March 2019 and 29 May 2019 were struck out as race discrimination complaints because they were out of time and it was not just and equitable to extend time. The tribunal found they were specific single instances, not part of a continuing act, and noted the claimant had professional advice within time. The specific allegation about extreme racist language was allowed to proceed because the tribunal considered there were records of the complaint and investigation and saw potential background relevance in how the respondent reacted.

The claimant's attempt to reintroduce a failure to promote complaint was not allowed because his former representative had expressly withdrawn it in a revised draft and the tribunal treated that withdrawal as conclusive under Rule 52. The race discrimination complaints about not receiving an 18p per hour supervisor pay increase in April 2019 and about Mr A stating that the claimant was not a supervisor were struck out as out of time and as having no reasonable prospect of success. The tribunal said the pay complaint was a single event with continuing consequences and that Mr A's statement that the claimant was not a supervisor was the truthful position in the work context.

The constructive dismissal claim under the Employment Rights Act 1996 and the claim of race discrimination by constructive dismissal under the Equality Act 2010 were recorded as in time and continuing. The judgment awarded no remedy; deposit orders and case management were dealt with separately.